UK: New criminal offences for journalists due to Digital Economy Bill 2016-17

by Tobias RaabOn 5 July 2016, then culture secretary John Whittingdale, who was replaced as culture secretary by Karen Bradley on 14 July 2016, introduced the Digital Economy Bill 2016-17 to the Parliament of the United Kingdom.

The Bill includes numerous provisions. In terms OFCOM, it allows the communications sector's regulator, to penalize financially communications providers for failing to comply with license commitments and gives OFCOM oversight over the BBC. In terms of online pornography, it aims at creating an age-verification regulator to publish guidelines about how pornographic websites should ensure their users are aged 18 or older. The Regulator should then also be able to fine those, which fail to comply. Other provisions create a legal right to minimum Internet download speeds for consumers, require Internet service providers to provide compensation to consumers if service requirements are not met, allow English and Welsh courts added sentencing options for Internet copyright infringement and provide for increased penalties for nuisance calls.

From a press freedom point of view, it is Part 5 (“Digital Government”) which is worthiest mentioning, as it contains a number of new criminal offences which could apply to journalists publishing leaked information. The Bill itself states to provide the necessary legal framework to enable data sharing for a public benefit and will be a key enabler for the government transformation plan and seems to assume that there was some kind of pre-existing general strict prohibition on the sharing of information among public authorities. Even though there are some prohibitions in legislation (e.g. section 50 of the Child Support Act 1991 and section 123 of the Social Security Administration Act 1992), there is no such general statutory restriction.

In this light, Part 5 creates numerous new criminal offences for journalists (clauses 33, 34, 42, 50 and 58), such as imposing criminal liability on those who receive leaked information and then disclose it to third parties, if the information in question contains “personal information” under clause 32(4). But that’s not all: third parties receiving the information will also be liable to prosecution if they disseminate it later on. First and third parties would then commit an offence, even if the information’s disclosure by the public authority would not be an offence itself. The Bill does not contain a general public interest defence but only very limited defences, e.g. when the disclosure aims at preventing loss of human life or responding to an emergency. Experts criticize these offences for being disproportionate, as they make disclosures of any information in any situation criminal which includes extensive consequences to freedom of opinion and expression.

The Bill is expected to complete its passage through the House of Commons during the autumn 2016 and will then move to the House of Lords. The British Government aims to achieve Royal Assent by the end of spring 2017.

Tobias Raab is an Attorney at Law and works as freelancer at the Institute of European Media Law (EMR), Saarbrücken/Brussels.

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